In a 3–2 majority decision, the Supreme Court held that a planning condition requirement (rekkefølgetiltak) was invalid because it was based on an incorrect interpretation of Section 12-7(10) of the Norwegian Planning and Building Act.
The sequencing requirement was adopted in connection with a planned residential development project at Mortensrud in Oslo and concerned the upgrading of a recreational pathway. The majority held that the authority to impose sequencing requirements is not limited solely by the doctrine prohibiting abuse of administrative discretion. Rather, Section 12-7(10) itself contains substantive limits on the administration’s powers. Where the municipality does not itself intend to carry out the measure in question, sequencing requirements may only be imposed to address genuine needs triggered or intensified by the development, or to mitigate disadvantages caused by it. There must be a sufficiently relevant and close connection between the measure and the development project to justify requiring that the development be carried out in a particular sequence. In the majority’s view, the County Governor’s decision in the administrative appeal proceedings was based on an overly broad interpretation of Section 12-7(10).
The minority adopted a different interpretation of Section 12-7(10) and concluded that the County Governor’s decision was not flawed.
The judgment provides guidance on the interpretation of Section 12-7(10) of the Planning and Building Act.
Source: Supreme Court
Bjørnar Oust
boust@melo.no
+47 480 42 931
